Pam Bondi wants to have the right to prevent states from conducting investigations into unethical conduct of DOJ lawyers

 In what highly respected legal ethics scholar Stephen Gillers has called “a DOJ powergrab,” last week the Department of Justice proposed a new federal regulation to grant Attorney General Pam Bondi the right to unilaterally interfere with state bar ethics investigations into current and former government lawyers. The rule is contrary to established law and should not survive scrutiny, but, as Joe Patrice has eloquently stated, “like a lot of this Justice Department’s shenanigans, the rule wasn’t really intended to hold up under scrutiny, it just needed to assert a big, splashy threat that might silence anyone who doesn’t want to have a protracted fight with the Department of Justice.”  Go here for Patrice’s thoughtful analysis. 

Aside from the fact that the Justice Department has zero credibility when it says it would conduct a serious investigation regarding the conduct of any of its own lawyers, the proposed rule goes against the so-called “McDade Amendment” (28 U.S.C. § 530B), which states that government attorneys “shall be subject to State laws and rules… governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.” Congress passed this provision specifically because DOJ tried to exempt its lawyers from state ethics rules years ago. 

For more on this story, check out the ABA Journal and The Hill.

OpenAI "accused" of practicing law without a license in civil lawsuit

OpenAI (the makers of Chat GPT) has been accused of practicing law without a license in a lawsuit brought by Nippon Life Insurance Co. of America.  

The lawsuit alleges that, after agreeing to a settlement with Nippon, the defendant asked ChatGPT for a second opinion and used its response to fire her attorney and attempt to challenge the settlement herself. She asked ChatGPT to generate proposed legal arguments and documents, which she used in a motion seeking to reopen the case.  Nippon argues that urged by ChatGPT, the defendant filed dozens of motions that “serve no legitimate legal or procedural purpose."

The ABA Journal has the story here.

New report on Arizona program on alternative business structures does not paint a pretty picture

 Long time readers of this blog may remember that I have posted several comments on whether the regulatory changes in some jurisdictions allowing lawyers to share their practice with non-lawyers in so-called “alternative business structures” has resulted in their supposed goal: to provide better and more affordable access to legal representation. The data I have seen over the years has not been very supportive of this conclusion.  What I have read about the subject always suggested that allowing “innovative” ways to fund the practice of law has resulted in innovation in the practice of law (and with it, in more profits for those involved), but not necessarily in more, better or more affordable access to representation for those who need it.

This was the conclusion in a 2022 report about the effects of the 2020 changes in Arizona and Utah by the Stanford Center on the Legal Profession.  See here. The publication of a 2025 report by the Institute for the Advancement of the American Legal System (IAALS) has been delayed, but the most recent published study has reported even more troubling results.

This new study, published in Arizona just recently, has found that the Arizona program has attracted profit-focused investors whose firms have generated a trail of consumer complaints (claiming harm to clients, violation of consumer protection laws, etc), financial conflicts of interest and inadequate oversight – essentially the types of dangers that those who originally opposed proposals to open the practice of law to non-lawyer investors feared would result from the experiment.  See here.

These results clash with some of the conclusions in the Stanford study, which found low rates of consumer complaints and which concluded that concerns about non-lawyer ownership compromising legal quality or professional standards had not materialized in any systematic way.  

But, as Robert Ambrogi explains in a comment on both studies, the different conclusions may be explained by looking at the methodology used to reach them.  While the Stanford study focused primarily on formal complaints filed through official channels, while the newer study in Arizona used more traditional techniques of interviewing affected consumers, reviewing court records and examining business practices in detail.

You should read Ambrogi’s very informative article carefully for more detail and links to more information; and we should all look forward to the upcoming publication of the IAALS report to compare the results.

I Want to Withdraw from My Representation, But Can I Tell the Court Why?

 The Law For Lawyers Today provides a quick review (here).

More criticism about the decision on discovery of AI research by client

 In my most recent post I wrote about a recent decision holding that the result of a client's use of an AI platform was not protected from discovery.  See here.  I argued that the opinion makes perfect sense in terms of the applicable law and that, unlike other commentators, I did not think it was "groundbreaking."  But I also pointed out (and provided a link) to some thoughtful criticism of it.

I am writing today to give you another good short comment on the opinion which takes the position that  although the opinion is correct given the state of the law, it is bad decision, and an opportunity lost to be "groundbreaking."  As the author puts it "The ruling may be defensible under existing doctrine.  But it is a disaster for the 21st-century justice system" and that the ruling is "tone-deaf [...] to the high cost of legal services and to AI’s potential to reduce those costs."

The author concludes "Judge Rakoff’s ruling mechanically applied old rules to a new world.  Today, millions of Americans are turning to interactive AI to survive a legal system that has become too expensive and too complex for ordinary people to navigate. As a lawyer, I want my clients and my potential clients to keep using AI tools. The law should encourage them to do so, not punish them for it."

The article is short and worth reading.  It is called "AI Research Can Be Used Against Clients In Court. It Shouldn’t Be" and you can read it at Above the Law, here.

Client's chat with a robot is not privileged -- UPDATED

February 22, 2026

Several sources that I follow reported this week on a case in New York that held that a client's chat with a public AI platform was not protected by attorney-client privilege.  See United States v. Heppner, available here.

For some reason, this surprised some people and I am not sure why.  

Let's be clear about what happened in this case.  Using some information obtained from a lawyer, a client - on their own - used an AI platform to get more information.  The information at issue is the one obtained from the AI in reply to the client's prompts and the court held - not surprisingly (at least to me) - that it was not privileged.

Why am I not surprised?  Because privilege information is defined as information shared between a lawyer and a client for purposes of obtaining legal representation.  The only way that one could argue that the information at issue in this case should be considered privileged is if we consider the AI platform (whether ChatGPT or one of its many equivalents) to be a lawyer.  Is anyone in their right mind going to argue that?  I don't think so.

But what about "work product"?, you might ask.  Well, what about it?  Work product refers to materials created by the lawyer as part of the representation of a client in litigation.  The "product" created in this case was created by the client, not by the lawyer and not at the request, direction or supervision of the lawyer. 

I do not know why anyone would have thought that arguing that the information generated by a client doing their own research would be considered privileged under these circumstances.  But just in case there was any doubt, there you have it.  Now there is precedent explaining what that argument will not be convincing.

What should lawyers learn from this case?  That you should tell your client that if they want legal advice, they should go to a lawyer, not to an AI platform because that "advice" will not be protected from discovery -- aside from the fact that the AI's advice may be bad or inaccurate - but that's another story.

For more on the story you can check out Ethical Grounds and The Law for Lawyers Today, among many others.

For a good article on general advice regarding the fact that clients are using AI to ask legal questions check out this article in Above the Law.

Having said all that, a more interesting question to ask is whether information that a lawyer generates when using AI should be considered to be privileged.  One would think the answer is yes, since the result of the query could be considered part of the lawyer's research and, at least in litigation, therefore, work product.  But the court in Heppner reasoned that the fact that the AI platform in question did not keep the information it collected private meant that sharing information with it was not done with a reasonable expectation of privacy.  If that is the case, then no use of AI would be protected.

For a good critique of this part of the opinion, check out the post by Jonah Perlin cited in the article in  Ethical Grounds linked above.

UPDATE (February 25):  Joe Patrice, of Above the Law, has published a good critique of the case here.

UPDATE #2: (March 1): For more commentary on the case (arguing it is a bad decision) go here.

ABA approves amendments to Model Rule 1.14

 Last Monday, February 9, the ABA quietly approved amendments to Model Rule 1.14 and its comment.  The resolution with the new approved version of the rule and comment is available here.  The updated version of the rule and the comment can be found here.

Although the changes are lengthy (particularly in the comment), in the end, the analysis remains essentially the same as in the old rule.  Here are three important highlights:

    (1) the rule replaces the term “client with diminished capacity” with “clients with decision-making limitations.”  Some say this was done to “tackle” bias reflected in the word “diminished” when referring to the capacity of an individual.  Yet, I personally don’t think that was really an issue.  Both terms have their utility.  The term diminished capacity refers to the fact that capacity is a matter of degree.  There is full capacity at one end, and incapacity at the other.  Diminished capacity refers to circumstances where a person does not have full capacity but has some capacity.  So, call it less capacity, or lesser capacity, if you will; but it used to be called diminished capacity because the individual has less than full capacity.  The term “decision-making limitations” is also descriptive because it helps place the issue in its proper context.  The issue relates to whether the lawyer should respect the client’s autonomy to make decisions, or whether the client has the capacity to make decisions, and, if not, the issue of what is the proper analysis to determine who can and should be making decisions for the client.  Thus, personally, I am ok with either the old language or the new one but if you want to be accurate, make a note of the new official language in the title of the rule.

    (2) The new rule and comment try to counter the fact that some thought the old rule unintentionally encouraged lawyers to pursue guardianship or conservatorship over clients even when less restrictive alternatives might be more appropriate.  Thus the new version is intended to encourage attorneys to explore less restrictive forms of protective action and to keep in mind that pursuing or recommending guardianship may be more intrusive than the circumstances require.  

    (3)  The bulk of the changes are to the comment of the rule.  In terms of substance, the new comment adds a lot of detail to the guidelines in the old comment, making explicit a lot of what was original implicit -- which is good.  But, in terms of format, the drafting of the new comment is surprisingly sloppy.  First of all, the drafters forgot that the comment to the rule is ONE big comment with numbered paragraphs, not individual comments.  At least in the version published in the ABA's website, as of now, there are two different paragraphs numbered [4], which should be corrected.  More importantly, there are a number of new paragraphs that are not numbered at all.  This is a pet peeve of mine, I know, but if you are going to use a certain format, it is important to be consistent throughout the rules.  The sloppiness derives from the fact that everyone refers to the comments to the rules by number (ie, saying comment number x to rule whatever), when in fact the actual format is that there is one comment (singular) to each rule and that the numbers are the numbers assigned to each paragraph in that one comment.  Now, the new comment to Model Rule 1.14 is drafted in one style, while the rest of the rules are different.  You might think this is silly, but it isn't when you are trying to figure out the proper way to cite to something in the comment.

For more commentary on the changes in the new rule and comment, you can read this short but valuable explanation published in the ABA’s website.

What is the proper sanction for a January 6 rioter?

 What should be the proper sanction for a lawyer convicted of felony and misdemeanor charges due to his role in the Jan. 6, 2021 assault on the Capitol, who was later pardoned by the President?  

The State Bar of Georgia and a special master’s recommended that he receive public reprimand, but the Georgia Supreme Court has rejected the recommendation and suggested that the proper sanction should be disbarment.  “[I]t is hard for us to see how anything less than disbarment can be accepted here,” the court wrote in a unanimous opinion. The matter was remanded for further proceedings.

The ABA Journal has the story here.

What to do about Trump lawyers

Joe Patrice has an idea.  Read:  "Disbar Them All: The Only Accountability Left For Trump’s Lawyers" in Above the Law.

Judge orders Lindsey Halligan to stop 'masquerading' as US attorney

 A few days ago I posted that a judge issued an order to show cause why Lindsey Halligan's conduct in continuing to refer to herself as "US Attorney" did not constitute a violation of rule 8.4 regarding dishonesty, among others.  See here and here.

A few days later, after a hearing, the judge has issued an order.  In it, the judge ordered the removal of the words “United States Attorney” from government filings in a case Halligan was involved in and prevented her from representing herself as the U.S. attorney in the Eastern District of Virginia unless appointed or confirmed by the Senate.  The judge also stated: “This charade of Ms. Halligan masquerading as the United States Attorney for this District in direct defiance of binding court orders must come to an end,”  Courthouse News Service has the story and a link to the order, here.

See also, 

Brutal, Humiliating Benchslap Puts An End To Lindsey Halligan Experiment.  Above the Law.

Judge posts job listing for prosecutor role Halligan claims to hold.  The Hill

Lindsey Halligan, Trump's former personal attorney, exits federal prosecutor post. NPR

ABA Publishes a new Ethics Opinion

The ABA's Standing Committee on Ethics and Professional Responsibility just published a new Formal Ethics Opinion (No. 520) on a lawyer’s obligation to convey information to a former client or successor counsel.  The abstract reads as follows: 

Model Rule 1.16(d) requires a lawyer to respond to requests for information from former clients or successor counsel in certain limited circumstances when doing so is necessary to protect client interests and reasonably practicable. Ordinarily, such a request will require a response when the requested information was acquired by the lawyer during the course of the representation, is unavailable from other sources, and is important to the client’s interests in the matter in which the lawyer formerly represented the client. Rule 1.16(d) does not require a lawyer to take steps to acquire new information, generate written responses, or provide further legal services to the client in response to a request for information.

Updates on the stories regarding Trump's illegally appointed prosecutors

Here are some follow-up stories related to the stories I posted a few days ago on judges disqualifying Trump appointed prosecutors:

Trump’s Loyalist Prosecutors Continue To Get Kicked Off Cases Because They’re Not Legally Appointed (Techdirt)

Halligan doubles down on US attorney title (The Hill)

Lindsey Halligan Says Her ‘I’m An Illegal Appointment’ T-Shirt Has People Asking A Lot Of Questions Already Answered By Her Shirt (Above the Law)

Pressure mounts as Trump digs in heels on US attorneys (The Hill)

Yet another case on improper use of AI in litigation

 The running count of cases involving courts complaining about hallucinated cases (created by AI) is now at 527.  (See here.)

Based on a recent one, Stacie Rosenzweig (in her post "We Should All Know Better By Now, But We Don't") reminds us of some basic rules of thumb:  

If you’re going to use AI to generate arguments or citations, verify every single one of them with a trusted legal research source.

Second, if despite your best efforts something sneaks through, fess up as soon as you learn about it, and move to correct or withdraw the pleading. Chances are, the opposing attorney won’t object.

Third, if you’re a supervisor, get a good AI policy in place before things go sideways, and train your junior attorneys and staff. And, if you’re a supervisor on a specific matter, . . . it may be time to trust less, and verify more.

And, it’s definitely time to trust less, verify more if your subordinate has already shown they’ve had problems with misuse of AI. . . . 

Finally—it’s not just this case. I’m seeing more of a duty of opposing counsel to detect, and to report, bad citations (AI or otherwise) rather than wait for the court to find them out. It’s always been a best practice to read each case cited by the opposing party (at least, each case substantively cited) so you can adequately respond to their arguments; finding out that a case doesn’t exist or that it’s not at all reflective of why it was cited shouldn’t be too much of a lift.

By the way, the sanctions imposed in the case were harsh:

The court declined to impose monetary sanctions. Instead, all three plaintiff attorneys were disqualified (and the whole case was stayed to allow the plaintiff to find new counsel), and they were ordered to provide copies of the order to the presiding judge in every pending case in which they were counsel of record (and the clerk was directed to send a copy of the order to the Mississippi regulatory authorities). The firm was directed to perform an audit, and, in the paragraph that made me shudder the hardest, the associate was ordered to seek withdrawal from every case in which she was appearing before that judge, and was forbidden from appearing in any other case before that judge for a period of two years.

And then think about what these sanctions meant for the clients and the firm.  Clients in unrelated cases lost their choice of counsel and the firm was forced to explain to other clients why that was the case.  I wonder if the clients will take their business elsewhere and whether the attorney will be seeking a new job... 

Two Trump appointed attorneys disqualified (one for claiming to hold office she does not; another after the court found he did not have a right to hold the office)

Back in November of 2025, a federal District Judge found that Lindsey Halligan's appointment as interim US Attorney was unlawful, and that, therefore, she had no authority to hold the office she claimed to hold at the time.  As you probably remember, this is the insurance lawyer with no prosecutorial experience that the Trump administration appointed, among other things, to bring charges against James Comey.  

Although the government appealed the judge's opinion and order, no court has issued a stay which means the order remains in place.  

For that reason, earlier this week, another federal judge was surprised to see that Ms. Halligan has continued to appear before his court still claiming to be a US Attorney, and promptly ordered her to explain herself and to explain why her conduct does not constitute a false or misleading statement in violation of professional conduct rules.  

The Hill and Above the Law have the full story (and the judge's order).

Meanwhile, in New York, another federal judge has disqualified the top federal prosecutor in upstate New York and blocked subpoenas his office issued to state Attorney General Letitia James finding that the lawyer's service as acting U.S. attorney for the Northern District of New York “was and is unlawful” because the Justice Department maneuvered to keep him in the role after judges declined to extend his tenure, in violation of statutory procedure.

Again, The Hill and Above the Law have the story.